The Crown has ultimate responsibility for the
good government of the Islands.

 Kilbrandon Report, para 1361

36. Kilbrandon explains that the basis on which the
Crown has ultimate responsibility for the good government of the
Crown Dependencies stems partly from the fact that, with the UK,
they are all part of the British Isles. Whilst this did not make
uniformity essential, it was "nevertheless highly desirable
that the institutions and the practices of the Islands should
not differ beyond recognition from those of the United Kingdom".
All parties were in favour of the Crown Dependencies expressing
their individuality, but it was recognised that "the British
Islands were an entity in the eyes of the world, and the United
Kingdom Government would be held responsible internationally if
practices in the Islands were to overstep the limits of acceptability".[48]

37. There is a high degree of consensus amongst academics,
legal advisors, politicians and officials about the meaning of
the term "good government" used in the Kilbrandon Report.[49]
They agree that good government would only be called into question
in the most serious of circumstances, exemplified by the recent
events in Turks and Caicos which did, indeed, lead to UK Government
intervention.[50] Such
circumstances are likely to include a fundamental breakdown in
public order or endemic corruption in the government, legislature
or judiciary. Kilbrandon himself gives a restrictive view of the
circumstances which would legitimately give rise to the duty of
the UK Government to intervene in insular affairs on the ground
of good government, whilst recognising that those circumstances
need not be too tightly defined:

There is room for difference of opinion on the
circumstances in which it would be proper to exercise that power.
Intervention would certainly be justifiable to preserve law and
order in the event of grave internal disruption. Whether there
are other circumstances in which it would be justified is a question
which is so hypothetical as in our view not to be worth pursuing.
We think that the United Kingdom Government and Parliament ought
to be very slow to seek to impose their will on the Islands merely
on the grounds that they know better than the Islands what is
good for them; there is ample evidence in the differences between
United Kingdom and Island legislation in social matters to show
that this policy has in fact been followed for very many years.[51]

Kilbrandon suggests that intervention to preserve
law and order or in the event of grave internal disruption would
be justifiable, but that an attempt to define the circumstances
further would be essentially pointless. He points to ample evidence
of a policy of restraint in the use of power on the part of the
UK Government as a reason for not pursuing the matter.

38. The current ministerial team are clearly following
this non-interventionist policy. The Justice Secretary told us
that he has the power to intervene in insular affairs on the ground
of good government, but that he had not found it necessary to
do so. He favoured a collaborative approach, whereby the UK Government
and the Crown Dependencies worked together to anticipate any problems
which might conceivably arise and deal with them in good time
in order to prevent the need for active intervention.[52]
Closely following the Kilbrandon formulation, Lord Bach stated
in the House of Lords that intervention in circumstances of "grave
breakdown or failure in the administration of justice or civil
order" would be justified. However, he addedparaphrasing
the Kilbrandon Reportthat "It is unhelpful to the
relationship between Her Majesty's Government and the Islands
to speculate about the hypothetical and highly unlikely circumstances
in which such intervention might take place.[53]

39. Some people have argued that certain events,
such as those arising out of the historic child abuse inquiry
in Jersey, are serious enough to warrant intervention in insular
affairs by the UK Government.[54]
Underlying these calls for UK intervention is a belief either
that UK responsibility for domestic affairs in the Crown Dependencies
has been engaged by events serious enough to fall within the definitions
set out in the Kilbrandon Report; or that the UK's responsibilities
are actually much wider than the definitions set out in the Kilbrandon
Report. Either way, such beliefs create expectations of UK intervention
which are not fulfilled.

40. Calls for the UK Government to intervene have
been declined by the Justice Secretary:

You have to be very careful about exercising
[the power to intervene on the ground of good government] and
it will be known that I have had representations in respect of
certain criminal proceedings and I have declined to intervene
in those, as far as I am concerned, on good grounds.[55]

41. We note the depth of feeling of some witnesses
to this inquiry who have indicated serious grievances with various
aspects of the governance of the Crown Dependencies and their
desire for the UK Government to step in to address their concerns.
However, the Crown Dependencies are democratic, self-governing
communities with free media and open debate. The independence
and powers of self-determination of the Crown Dependencies are,
in our view, only to be set aside in the most serious circumstances.
We note that the restrictive formulation of the power of the UK
Government to intervene in insular affairs on the ground of good
government is accepted by both the UK and the Crown Dependency
governments: namely, that it should be used only in the event
of a fundamental breakdown in public order or of the rule of law,
endemic corruption in the government or the judiciary or other
extreme circumstance, and we see no reason or constitutional basis
for changing that formulation.

Sark

42. Sark is part of the Bailiwick of Guernsey. It
has its own legislative and executive body, the Chief Pleas, and
legislation from the States of Guernsey can only be applied to
Sark with its consent. Chief Pleas has legislative competence
in relation to domestic matters except for criminal law, which
is reserved for the States of Guernsey.

43. Until 2008, Sark's government was based on a
feudal system. The Seigneur, a hereditary position, was the head
of government. Chief Pleas was made up of the feudal landholdersthe
Tenantsand twelve deputies of the people. The Seneschal
was the presiding officer and Chief Judge. This arrangement came
to be considered untenable in the light of human rights law, and
the long process of reform was started.

44. Without setting out the minutiae of the tortuous
reform process, it is sufficient to note that, since the Sark
Reform Law 2008, Chief Pleas has been a democratically elected
body. It is made up of 28 Conseillers, elected by universal adult
suffrage for the first time on 10 December 2008, the Seneschal,
who remains presiding officer and Chief Judge, and the Seigneur.

45. For the purposes of this Report, Chief Pleas
is interesting for two reasons. First, during the reform process,
the Justice Secretary rejected the first formulation of the new
legislature after it had been passed by Chief Pleas but before
it received Royal Assent. He declined to recommend the proposed
law for Royal Assent on the basis that it was inconsistent with
basic democratic principles, some of which were set out in the
European Convention on Human Rights.[56]
In other words, Royal Assent was withheld on the basis that the
law was not compatible with the UK's duty to ensure compliance
with international obligations. Our impression is that the Justice
Secretary also regarded this as a "good government issue".[57]
When a revised law was resubmitted by Sark, the Justice Secretary
judged it to be acceptable and recommended it for Royal Assent,
which it duly received.[58]
Refusal of Royal Assent is a relatively rare occurrence as most
inconsistencies are normally addressed through dialogue and collaboration
before an Island parliament passes a law.[59]

46. Second, although Sark now has a democratically
elected government which is judged to comply with international
human rights obligations by both the Justice Secretary and the
Supreme Court[60], a
question mark has been placed over its continued ability to function
properly. When we visited Sark, we were told of the considerable
economic and political power exercised by Sir David and Sir Frederick
Barclay. They are major employers on Sark and own a considerable
amount of land and businesses there. It follows that the livelihoods
of many Sark's people depend on them.

47. This was amply demonstrated by the events which
followed the first democratic election on Sark in December 2008.
In the poll, all but two of the Barclays' publicly preferred candidates
for election to Chief Pleas were rejected, whereas nine of the
successful candidates had, prior to the election, appeared on
the brothers' published list of candidates described as "dangerous
to Sark's future". The following day, the Barclays closed
down a number of businesses they owned and stopped their building
projects on the Island. As many as 140 (estimates differ) of the
600 inhabitants were out of work until the Barclays reopened most
of their businesses a few weeks later.[61]

48. We were also told that the Barclays were engaged
in a long-running battle of attrition with individuals, particularly
Members of Chief Pleas, whereby the Barclays repeatedly instructed
their lawyers to write to individuals demanding retractions or
apologies in order to protect their interests and reputation.[62]
We were told that such legal action rarely comes to court because
the Islanders involved often cannot afford to defend themselves
and simply capitulate, however unwillingly. We have not tested
these allegations in evidence and we do not intend to take sides
or make judgement on these issues.

49. As a matter of general principle, we note
that, in a very small jurisdiction, there must always be the possibility
that individuals wielding very significant economic, legal and
political power may skew the operation of democratic government
there. Just as the establishment of democratic government in Sark
was a matter of good government, any threat to the ability of
that system to operate fairly and robustly has the potential to
raise good government issues which might require UK Government
intervention. This is a matter on which the Ministry of Justice
needs to keep a watching brief.